In the case of kin-slaying in a ‘passion,’ the influence of the ghosts’

will was especially vigorous. Plato says[106] that even when the

‘involuntary’ slayer had served a term of three years’ exile, and had

returned to his native land, he could never return to his family and his

home, or share with his kindred in domestic rites. Thus the Erinnys of

the slain kinsman refused to be controlled by a centralised autocracy

at Delphi, or even by the will of native State-gods. Hence, perhaps,

it is that in the dramatised versions of the Oresteia, Athene has to

use ‘Persuasion’[107] to induce the Furies of Clytaemnestra to become

Eumenides. Hence the Furies say of Orestes[108]:

‘His mother’s blood upon the Earth he spilled.

Shall he in Argos dwell—his father’s home?

What phratry-altar can him e’er receive?

What common lustral water can he share?’

Hence, also, as Glotz points out,[109] the preliminary plea on oath of

the accuser and the accused, in homicide cases, was taken before the

altar of the Erinnyes or the Semnai Theai; and the defendant who was

acquitted of murder by the Areopagus, as well as the returned exile who

had paid the penalty of involuntary homicide, offered sacrifice there.

THE RITUAL OF HOMICIDE-PURGATION

In regard to the ceremonial of purgation by which the slayer, in certain

circumstances, was ‘cleansed’ or purified, we have already[110] pointed

out what we consider to have been the origin of the rite; and we have

shown how the analogies which existed between such a ceremonial and the

general Chthonian sacrifices of ‘expiation,’ ‘placation,’ and ‘aversion’

caused these rites to be confused with one another in the minds of

ancient and of modern writers. The ceremonial of homicide-purgation

appears at first sight so simple and elementary in character that we

would be inclined to assume _a priori_ that it could have been duly

performed by any ordinary person. But, in fact, we shall see, the

performance became the privilege of priests or theocratic nobles. An

animal, generally a pig,[111] but sometimes a calf or a lamb,[112] was

bled to death and the warm flowing blood was poured over the hands of

the slayer, passing away into the sea or into a running stream. The dead

animal was then thrown into the water, or was buried, but it could not be

eaten.

We may compare the Chthonian ceremony of swearing, in which the slain

animal was conceived as at once symbolising and magically inducing a

similar fate in case of perjury. The Roman formula is well known. Livy

tells[113] how a certain M. Valerius, one of the Fetiales, or Roman

priests, swore on behalf of the Roman State, to the Almighty Juppiter,

in a treaty with ancient Alba. ‘Audi, Iuppiter: audi, pater patrate

populi Albani: audi tu, populus Albanus ... si prior defexit publico

consilio, dolo malo, tu illo die, Iuppiter, populum Romanum sic ferito

ut ego hunc porcum hic hodie feriam: tantoque magis ferito quanto magis

potes pollesque.’ Now, all such ceremonies, simple as they may appear,

were hedged round with the most minute regulations as to formulae

and procedure, and were thus removed from the competence of ordinary

individuals.

Moreover, each locality developed differences of usage which, however

slight, could never be ignored. Herodotus,[114] speaking of homicide

purgation, implies that all Greeks used the same rites. But that there

were minor local variations may be inferred, perhaps, from a peculiar

ceremony in the _Oedipus Coloneus_ of Sophocles. Oedipus, having gone

as an exile from Thebes to Attica because he had slain his father, is

told[115] that he cannot hold converse with the Athenians while he is

still uncleansed. The ban is removed when he is admitted to ‘purgation,’

but for the due performance of the rite he is entirely dependent on local

direction. We shall give the relevant dialogue between Oedipus and the

Chorus[116]:

_Oed._ Kind sir,

Be my good guide. I will do all thou biddest.

_Ch._ Propitiate these holy powers, whose grove

Received thee when first treading this their ground.

_Oed._ What are the appointed forms? Advise me, sirs.

_Ch._ First see to it that from some perennial fount

Clean hands provide a pure drink-offering.

_Oed._ And when I have gotten this unpolluted draught?

_Ch._ You will find bowls, formed by a skilful hand,

Whose brims and handles you must duly wreathe.

_Oed._ With leaves or flocks of wool, or in what way?

_Ch._ With tender wool ta’en from a young ewe-lamb.

_Oed._ Well, and what follows to complete the rite?

_Ch._ Next, make libation toward the earliest dawn....

_Oed._ With what contents

Must this[117] be filled? Instruct me.

_Ch._ Not with wine,

But water and the treasure of the bee.

_Oed._ And when leaf-shadowed Earth has drunk of this,

What follows?

_Ch._ Thou shalt lay upon her then

From both thy hands a row of olive twigs

Counting thrice nine in all—and add this prayer—

_Oed._ That is the chief thing—that I long to hear.

It may be said that we have not here a genuine instance of

homicide-purgation. There is no animal sacrifice, no ‘cleansing’ by a

bath of blood. Water and honey were regular offerings to the dead, and

the express prohibition of wine-libations reminds us very forcibly of the

sacrifice to the Erinnyes made by Clytaemnestra in the _Eumenides_ of

Aeschylus.[118] Has Sophocles in mind, then, a local rite of placation to

the Erinnys of Oedipus at Colonus, which he interprets as a commemoration

of purgation rites? We have seen how easily such rites may be confused.

Or are we to assume that the purgation rite for involuntary or extenuated

homicide was different from the rites by which a wilful murderer could be

purged ‘abroad’ or from those by which a justifiable slayer was purged

at home? Was the sacrifice which was offered to the Erinnyes or the

Semnai Theai[119] by involuntary slayers after their return from exile,

and by accused persons who were acquitted by the Areopagus, a regular

purgation rite? These questions we find it difficult to answer either in

the affirmative or in the negative. Plato’s references[120] to greater

and lesser ‘cleansings’ according to different degrees of guilt imply

that the average Greek did not understand the exact nature or purpose

of ‘purgation’ and that the secrets of this magic art of reconciliation

were the exclusive privilege of theocratic nobles whose interest it was

to obscure rather than to clarify the details of the system. The passage

we have quoted from the _Oedipus Coloneus_ possibly points to variations

in the ‘purgation’ ritual according to degrees of guilt—variations

which suggest moreover the ambition and the power of local deities and

priesthoods to retain their distinctive peculiarities in the execution of

a central Apolline doctrine.[121]

In the _Iphigenia Taurica_ of Euripides[122] we find a mock purgation

ceremony arranged by Iphigeneia to save the lives of Orestes and of

Pylades. The image of Artemis is said (it was a fiction invented by a

loving sister) to have turned in its seat and to have closed its eyes

when the blood-stained Argive cousins entered the temple! Iphigeneia

proposes to ‘cleanse’ the pollution by the blood of young lambs shed

in solitude by the sea and such other things as she has ordered as

purifications. King Thoas, not being himself appealed to, leaves the

whole question of purgation entirely in the hands of the priestess of

Artemis.

From the legend that Bellerophon was cleansed by his host Proetus,[123]

the king of Tiryns, we might be inclined to argue that the purgation

rites for certain forms of kin-slaying were performed by private

non-sacerdotal individuals. But every king was a High Priest in primitive

religion; and, further, we have already seen that Proetus could not have

performed the post-Homeric ceremony which is attributed to him. It is

however possible that Croesus personally ‘purged’ the Phrygian homicide

mentioned by Herodotus.[124]

It is probable that in Greece the ‘cleansers’ of homicide-guilt were

always ‘priests’ of some kind. Epimenides of Crete purged the city

of Athens on a famous occasion, yet not from murder but rather from

sacrilege[125]; moreover, Müller points out[126] that he was a native of

Phaestus in Crete where there was a very ancient cult of Apollo; hence

Epimenides was more than probably a member of an Apolline sacerdotal

guild. Müller is, however, we think mistaken in regarding purgation for

homicide as the exclusive privilege of Apolline priests. The Euripidean

reference to purgation by a priestess of Artemis which we have just

cited,[127] Athene’s interpretation[128] of the supplication of Orestes

as a supplication for purgation, in the _Eumenides_ of Aeschylus, and

many passages in the _Laws_ of Plato,[129] reveal the error of this

opinion.

The purgation of Orestes by Apollo is described by Aeschylus in the

_Eumenides_. It is no priest or priestess of Olympian or Chthonian gods,

but Apollo himself,[130] the chief of the καθάρσιοι θεοί, who performs

the rite. We cannot interpret the ceremony as the purgation of a wilful

matricide ‘abroad,’ as we think that such purgation was impossible, at

least in historical times.[131] It is the ‘purging’ rather of a deed

which is either justified or extenuated by Apollo’s express command, a

‘purging’ which would normally take place in the slayer’s home-land but

which is here attributed to a divine Delphian purifier either because

Apollo was the patron of the Greek ‘purgation’ system or because the

deed was such that no one could have cleansed it save the god who had

commanded it, or because a Phocian legend made Phocis, not Athens, the

place to which Orestes fled after the slaying of his mother. Orestes

tells[132] Athene that he is not a suppliant for purgation at Athens,

because he has been already ‘purged.’ We may infer from this that a

homicide-exile had not to be ‘purged’ more than once in his changes of

residence abroad, but we think it probable that such ‘extern’ purgation

did not dispense with the need for ‘domestic’ purgation if the exile was

ever permitted to return to his home.[133] Orestes says[134]: ‘There is

a law that the shedder of blood is debarred from human intercourse until

at the hands of a man who purifies from bloodshed the blood of a young

animal has been poured upon him. Long ago have I been thus made clean by

others who live elsewhere, by animal victims beside running water.’

From this passage, and from the reference which we have cited

from Euripides’ _Iphigenia Taurica_, as well as from more general

considerations we conclude that homicide-purgation normally included

the shedding of animal blood when some element of guilt was admitted.

It is possible, therefore, that the rite described by Sophocles, in the

_Oedipus Coloneus_,[135] was not conceived as a genuine purgation-rite

but rather as an exceptional local procedure which was intended to

supplement a presumed anterior purgation.[136] That Attica was noteworthy

for its scruples regarding ‘pollution’ may be inferred from the remarks

of the Corinthian Chorus in the _Medea_ of Euripides.[137]

We are entirely on the side of Müller[138] and Philippi[139] in the view

that purgation, in historical Greece, was applied to the authors of

justifiable bloodshed.[140] This we may regard as a further confirmation

of our opinion that homicide-purgation was not a placation of ghosts

or an expiation offered to gods, but a solemn and sacred symbol of

reconciliation between the slayer and his native gods.[141]

Our hypothesis of the origin of the Greek doctrine of homicide as a

pollution will receive still further confirmation when we describe in

more detail the historical Greek system of penalties for bloodshed and

the conceptions of those penalties which are found in Attic tragedy.

We will now give the reasons which have led us to associate the Greek

‘pollution’ doctrine with the Delphian Apollo and his Amphictyonic

League, after which we shall be in a position to discuss[142] the

influence of the ‘pollution’ doctrine on ‘wergeld’ and the legality of

‘private settlement.’ The following account is intended as a supplement

to Müller’s analysis, which errs only in attributing purgation-rites

exclusively to Apollo and his priests.

APOLLO AND POLLUTION

In Homer, Apollo has already established at Pytho a temple of many

treasures.[143] The reference to ‘sacred Crisa’ side by side with ‘rocky

Pytho’[144] suggests, if the Greeks were right in their interpretation

of ‘Crisa’ as ‘the Cretan land,’ that the region was already revered in

the days of the Minoan thalassocracy. Aeschylus in the _Eumenides_[145]

reproduces the Greek tradition regarding oracle-deities at Delphi,

before the advent of Apollo. The Delphian priestess accords priority to

Ge, the Earth-goddess, ‘the first of prophets,’ and then she prays to

Themis, as the second deity who gave oracles there. This legend probably

originated in a joint worship of Ge and of Themis under the forms of

the Mother and the Maid; for, just as the cult of Demeter and Kore

represented the joint worship of the Earth and its produce, so the cult

of Ge and Themis represented the worship of the Earth and of the deified

uniformity of the Earth’s fertility. Next the priestess prays to Phoebe,

another daughter of Earth, who in turn transmitted the oracle to her son,

Phoebus Apollo. It was supposed that the temple which is mentioned by

Homer was the fourth[146] temple which had been built on that site. This

temple was destroyed in 548 B.C., according to Pausanias.[147] Hence it

is much less probable that the oracular shrine had been handed down by

continuous succession as an inheritance within a ‘divine family’ than

that it was repeatedly destroyed and desecrated by successive invaders.

The destruction of Crisa in 585 B.C. by the Amphictyonic League furnishes

an historical illustration of its chequered career in prehistoric ages.

The octennial festival known as the Stepteria,[148] which commemorated

the conquest of the Python by Apollo, had probably an historical

foundation. For the Python, a large snake, was worshipped as a symbol of

the Earth’s fertility: it was therefore associated with Ge and Themis,

who ‘handed down’ the oracle according to legend. The famous Omphalos

at Delphi, of which the origin and significance were so mysterious to

the Greeks, was really the tombstone of the Python. But Earth, though

buried, still lived in the tomb! It was from a cavern of Earth that the

Pythian priestess received the vapours which produced her ‘anaesthetic

revelation.’[149] In the Apolline shrine was the Hestia, or sacred

Hearth, derived from pre-Olympian ancestor worship and necromantic art.

Before the pilgrim entered the shrine of the Olympian oracle, he had to

perform a Chthonian sacrifice, and offer a πέλανος, a mixture of milk,

wine and honey, which was a characteristic offering at the tombs of the

dead.[150] Around the tomb of the Python stood Gorgon-images,[151] which

were probably suggested by ‘image-magic’ as a placation of the wrath of

the Erinnyes, who sought the life of the slayer of the Python. It was

from these images, we think, that Aeschylus derived his conception of

the Erinnyes, and the famous scene[152] which depicts them as sleeping a

loathsome sleep in the temple of Apollo, whom they hate but also fear.

We find in Aelian and Plutarch the legend[153] that Apollo, in the days

of his conquest of Delphi, fled to Tempe, after slaying the Python, to

be purified from the pollution. The Stepteria festival was believed to

commemorate his flight! In this legend, however, as in that in which

Zeus purifies Ixion,[154] we see the effect of aetiological myth-making

and the operation of a principle of primitive religion whereby man makes

the gods in his own image and attributes to them the emotions and the

observances of his own day.

As we cannot regard Apollo, notwithstanding Müller’s[155] reasoning,

as the special product of Dorian religion, so we cannot attribute his

exaltation in post-Homeric days exclusively to the Dorian invasion.

The Achaeans worshipped Apollo as a prophet-god and as a powerful ally

in war, but their hegemony in Greece was based on military control

rather than on theocratic manipulation. The Delphians are not mentioned

in Homer. They were a Dorian dominant caste which conquered the

Phocian masters of the ‘Homeric’ temple at Pytho,[156] about 1000 B.C.

Undoubtedly they could not have retained the fruits of their conquest for

any period of time, if they had not been supported by the power of the

Dorian invaders of Southern Greece. Thus, in 448 B.C., when the Phocians

had reoccupied Delphi, it was the Dorian Spartans who sent an army to

restore it to the Delphians.[157] Yet the Athenians, who were then

supreme in Central Greece, restored it to the Phocians for a time. But,

about 585 B.C., when anti-Dorism was at its height in Greece, it was to a

northern league of Greek States, in which the Dorians were subordinate,

that Delphi looked for help against the Phocians of Crisa.[158] The fact

that Cleisthenes of Sicyon, an anti-Dorian, championed the Delphians

in this campaign, proves that their Dorian nationality was already

subordinated to the prestige which they had won as the High Priests of

Greek prophetic religion: and the loan of fifteen talents which a Spartan

king gave to the Phocian general who had once more seized Delphi in 356

B.C. shows how Dorism had lost its primal solidarity.[159]

We think, then, that the prestige of the Delphian Apollo, though

originating in the Dorian migration, was due to a combination of two

forces: (1) the widespread cult of Apollo in Greece and in Asia Minor:

and (2) the skill by which the Delphians (who controlled the oracular

decrees) impressed the Greeks and foreign peoples with the unrivalled

divinity of their local shrine in matters of prophecy and healing-magic;

and organised under their banner the local priesthoods of Greece by

annual processions and pilgrimages, by the construction of sacred roads,

and the establishment of religious Amphictyonies.[160] While other

‘sacerdotal’ nobles in Greece worshipped a number of deities, Olympian

and Chthonian, the Delphians seem to have concentrated on Apollo. They

were definitely theocratic—being a select caste of nobles, whose High

Priests were elected by lot.[161] They formed a criminal court which

exacted the death penalty for sacrilege. It follows that when homicide

became a religious offence, these judges would not only have decided

all cases within their territory,[162] distinguished between different

degrees of guilt, and pronounced upon the possibility of purgation,

but they would also have used the prestige of the oracle to make

their decisions imitated elsewhere. Thus, the Attic Eupatridae, who

worshipped Apollo Patroos, and their judges, the Ephetae, who swore by

him before their trials,[163] would naturally have adopted the decisions

of the central Apolline oracle. Moreover, the annual processions of

representatives (θεωροί) of Greek states to Delphi, the Pythian Games, a

festival in which all Greeks participated, and the formation of religious

international leagues or Amphictyonies made obedience to Apolline oracles

almost a matter of obligation.

The great Thessalian Amphictyony of Demeter at Anthela, a very ancient

association, including Thessalians, Locrians, Phocians, Boeotians,

Athenians, Dorian and minor states, came in the sixth century[164]

to meet also at Delphi, and the temple was placed under the control

of international Hieromnemones who met twice a year and promulgated

laws to be obeyed by all its members, called Amphictyonic laws. It is

significant that, in historical Athens, murder exiles were prohibited

from Amphictyonic festivals.[165] This law was clearly of Amphictyonic

origin.[166]

We have quoted Thucydides’[167] account of the command which was issued

by the oracle of Apollo to Alcmaeon, the matricide, directing him to

travel to the Echinades Islands. This legend bears, on the face of it,

an antique stamp, and the function which is here ascribed to the Delphic

oracle is a first-rate piece of evidence for the connexion of Apollo

with the historical doctrine of ‘pollution.’

We have quoted Herodotus’[168] account of the story concerning Phrixus

and Athamas, in which a Delphic oracle was said to have commanded the

Thessalians to ‘purge’ their country by slaying Athamas in sacrifice.

This legend we regard as ‘unhistorical’ and pseudo-aetiological, but the

rôle which it assigns to Delphi may be cited in support of our present

hypothesis.

In historical Attica, the rites of homicide-purgation were performed by

three persons called Exegetae or Interpreters who, Suidas[169] assures

us, were appointed or controlled by Delphi (Πυθόχρηστοι). Plato,[170]

speaking of the appointment of Sacred Interpreters, says: ‘It is right to

bring from Delphi the laws relating to all “divine matters” and to follow

these laws, having appointed interpreters for them.’ Speaking of their

appointment he says that from the names of candidates which stood first

on the list after election, nine should be sent to Delphi, and ‘the god’

was to select three of these names. The homicide laws of Dracon, as we

shall see later, were not a complete code of homicide-law. Many details

were omitted, and these details, we believe, were worked out in the

unwritten code of the Ephetae and the Exegetae. In the _Euthyphro_[171]

of Plato, a poor freeman who had killed a slave was put in chains and

cast into a trench on the wayside to await the decision of the Exegetae

concerning his guilt! The man died from hunger and neglect before the

decision arrived, and the question of avenging his death forms one of the

problems of the dialogue.

Coulanges points out[172] that the Spartans regarded, not Lycurgus, but

Apollo, as the author of their laws. These laws were Πυθόχρηστοι. If they

operated, concerning homicide, in a comparatively severe manner, this was

because the Spartan military system absorbed without much modification

the autocratic tendencies of Delphic law, but we must not attach too

much importance to a single statement of Xenophon’s which can perhaps be

otherwise explained.[173]

Solon, the Athenian legislator, abolished all the laws of Dracon except

those which related to homicide.[174] These particular laws were

themselves an anomaly in the Draconian code. Plutarch says that the laws

of Dracon were said to have been written with blood, not with ink.[175]

Death was the penalty for minor thefts, yet the wilful murderer was

accorded the option of exile, and the involuntary slayer, the further

option of ‘appeasing’ the relatives of the slain! The life of a murderer

in exile was ‘protected’ by the decree of a State whose jurisdiction

ceased at its boundaries! We believe that the Draconian homicide-laws are

an eclectic codification of existing traditions and that these traditions

were a compromise between tribal customs and the seventh-century

Apolline doctrine of ‘pollution.’ Coulanges says[176] that Solon did not

change the murder laws of Dracon, because they were ‘divine,’ and to

disobey or tamper with such laws was regarded as sacrilegious. In our

view Apollo and the Delphic oracle constituted one of the sources, and

clan-traditions another, from which sprang the laws which Dracon codified.

Plato,[177] speaking of the penalties for wilful kin-slaying, refers

to a myth or legend ‘clearly told by priests of old’ to the effect

that Justice, the avenger of kindred bloodshed, has ordained that

the perpetrator of such an act shall suffer the same doom as he has

himself inflicted.[178] We have seen[179] that in the clan-system,

kin-slaying was normally punished by perpetual exile, but not by death.

We do not agree with Caillemer[180] that the fate of such exiles was

more pitiable than that of ordinary homicide exiles, but we support

the following opinion of his in regard to the attitude of the kindred.

‘Ils hésitent,’ he says, ‘souvent à verser le sang de leur parent: ils

se bornent au bannissement du coupable.’ In Plato,[181] the penalty

for kin-slaying is inexorably death. It was, we believe, the pollution

doctrine which indirectly produced this change, through the abolition of

‘private vengeance.’[182] It could not have _directly_ produced it, as

is clear from the fact that amongst the Israelites, who still retained

the avenger of blood, Cain, the murderer of his brother, was punished

only by exile; but when, as in Greece, the pollution-doctrine caused

the State to interfere in the trial of homicide and in the execution

of its penalties, State judges came to execute a penalty which the

relatives of the slain would never have inflicted upon a kinsman in the

days of ‘private vengeance.’ We shall discuss more fully, later,[183]

the problems concerning parricide in Attic law. The fact that parricide

was not expressly mentioned in Dracon’s laws does not prove that such a

crime was not punished by State officials in historical times. Thus the

myth which is attributed by Plato to ‘priests of old’ may be regarded as

another proof of the ‘divine,’ which is to say, the Apolline inspiration

of historical Greek homicide law.

Again,[184] in regard to suicide, Plato says that it is necessary for

the relatives of the deceased to inquire of the ‘Interpreters’ as to the

proper methods of purification and of burial.

But the most decisive argument to be derived from Plato as to the

connexion of Apollo with purgation and with Greek homicide law can be

found in the scholium to a passage in the _Laws_, a scholium which

incidentally supplies a proof of the historicity of Plato’s murder laws.

The passage enunciates different cases of justifiable homicide, or rather

justifiably accidental homicide—the essence of such discrimination lies

in the fact that certain kinds of accidental slaying were foreseen and

provided for, in advance, whether by custom, or by public opinion, or

by written codes—and the cases which are here enunciated are identical

with those of the Draconian law regarding justifiable bloodshed.[185]

We cite only a section of the passage,[186] which is sufficient for our

present purpose. ‘If any person unintentionally slays a fellow-citizen

(φίλος) in a “contest” or at the public games ... or during war, or in

military exercises ... in imitation of warfare ... let him be purified

according to the law brought from Delphi about such matters and be

immune from punishment (καθαρός).’ The scholiast gives the Delphic law,

as follows.[187] ‘_The law or oracle_ brought from Delphi regarding

a man who kills his friend (_i.e._ fellow-citizen, as distinct from

public enemy) involuntarily:—“Thou hast slain thy comrade (ἑταῖρον)

while intending to defend him (ἀμύνων)—his blood doth not pollute thee:

thou art purer than thou wast before: but thou, man, who standing near

a comrade being killed hast not defended him—thou hast gone not pure

away.”’ That such important cases of justifiably accidental homicide

should be provided for by Delphic legislation is a most noteworthy fact.

Such cases are mentioned in Dracon’s laws, and we presume that they found

a place in other Greek written codes. The reference to ‘public games’

suggests unmistakably an international code of laws. Here, then, we find

Plato, a member of that Attic State which prided itself on the early

foundation[188] of the Delphinium court, for the trial of justifiable

homicide, in the time of its first Ionian Kings, advising a conformity

to Delphic legislation in homicides of this kind! This scholium, if

properly weighed and considered, would in itself be almost sufficient

to demonstrate our theory of the Delphic origin of historical Greek

homicide-laws, and of the universal similarity of these laws. We cite it

here, however, as a mere link in a chain of evidence which is still very

far from completion.

We have already referred[189] to the exclusion of homicide-exiles from

Amphictyonic festivals in Greece, and we have maintained that such a law

probably originated in some Amphictyonic league such as that of Apollo at

Delphi. The same reasoning applies to the law quoted by Demosthenes[190]

as a law of Dracon, which protected the lives of homicide exiles abroad.

The law reads: ‘If anyone shall slay a murderer or cause his death

while he abstains from market-places on the State boundaries and from

(public) games and Amphictyonic festivals, such a person shall be liable

to the same penalties as if he had killed an Athenian citizen.’ We have

already[191] suggested the origin of such a law. It was, we think, due

to the influence of tribal custom in conflict with the new doctrine of

‘pollution,’ in the seventh century B.C. Demosthenes does not understand

correctly the origin of the law, though he is reasonably successful in

explaining the law.[192] ‘What,’ he says, ‘was the legislator’s object?

(He thought) that if we slay people who have fled to other countries,

others will slay those who have fled to us: if this happens, the only

refuge left for the unfortunate wretches will be abolished ... also

he strove to prevent an indefinite series in the avenging of (such)

crimes.... He considered that if a man who is tried for murder, and

condemned, once escapes securely, though he ought (also) to be expelled

from the native State of the victim, it is not righteous to kill him in

every place.’ Demosthenes forgets that it was quite possible for ancient

Greek States to make an international compact such as appears to operate

between States of the modern world, whereby all murderers who fled abroad

would be _extradited_—not slain where they had taken refuge, but handed

over to the State of the ‘victim.’ We shall see presently[193] how the

Greeks did evolve a system of extradition of a special kind. All the

objects which Demosthenes attributes to the legislator are the creations

of his own rhetorical mind. Why should he expect pity for ‘unfortunate

wretches’ in a legislator who decreed that, if these wretches remained

at home until the verdict of the court was given, they would inexorably

be put to death? Why should a murderer expect pity from the relatives of

the slain who were polluted by his presence? No, such a law must have

originated in a central international Amphictyony or oracular authority

which, in its legislation, had to respect the traditions of tribal

village communities and of tribal aristocratic States, traditions which

had come down from distant ages, and could not be suppressed without a

struggle. Tradition held that ‘exile’ saved the murderer’s life, and

it was not felt that such a penalty was not a sufficient deterrent.

New social conditions, new religious doctrines may have changed men’s

conceptions of the deterrent power of exile, but they had, nevertheless,

to respect the old tradition. The homicide laws of historical Greece are,

we believe,[194] a compromise between central autocratic deterrence and

tribal ‘private vengeance.’

In the last clause of the Demosthenic passage which we have cited there

is a reference to the righteousness of slaying a murderer if he did not

abstain from the ‘land’ of the victim where that ‘land’ or State was

different from his own. We fail to understand how such a law could have

existed, or could have effectively operated, without an international

compact expressly made or tacitly adopted through the mouthpiece of

an Amphictyonic oracle. We cannot accept Glotz’s theory[195] that the

immunity of homicide exiles abroad originated in separate treaties of

Refuge or ἀσυλία. The law is much too wide and universal to permit of

such an explanation. Thus, for instance, if an Athenian slew a Theban

at Athens or at Thebes, the murderer was bound, after conviction, to

abstain from Athens and Thebes for the rest of his life. No single Greek

state could have produced such a law. Such eventualities would inevitably

require an international compact or an Amphictyonic sanction.

Plato confirms the existence of these laws. Speaking of involuntary

homicide, he says[196]: ‘It is necessary that the slayer should withdraw

from the (country of the) slain and evacuate his own native land for a

year: if the deceased is a stranger, let the homicide be debarred from

the stranger’s “land” for the same period.’ Speaking of wilful murderers,

he says[197]: ‘If he goes abroad without challenging a verdict (μὴ

θέλησας κρίσιν ὑποσχεῖν), let him suffer perpetual exile: but if any such

person sets foot upon the “land” of the slain, let whoever first meets

him, whether relative (of slain) or citizen, slay him with impunity, or

... hand him to the magistrates ... to put him to death.’

So far we have assumed that only two States were involved in the

homicide. But let us suppose that an Athenian slew a Theban at Argos. It

would seem that the Athenian slayer, if he elected to become an exile

rather than to die, was debarred from three places or rather three

States, namely, Athens, Thebes and Argos. Plato, speaking of involuntary

homicide between strangers, metics, and citizens, says[198]: ‘If a

stranger involuntarily kills a stranger in the city, let anyone who

wishes prosecute him in accordance with the same laws: if the slayer is a

metic, let him go into exile for a year: if he is a complete foreigner,

let him, if he shall have killed a stranger or a metic or a citizen, be

banished for his whole life from the country which has power over these

laws,[199] and if he returns contrary to the law let the guardians of

the laws punish him with death.’ The city which has ‘authority or power

in regard to these laws’ must be, in this case, the city in which the

deed took place. Thus, a person guilty of involuntary homicide could in

certain circumstances be debarred for ever from the place in which the

deed occurred, and for at least a year from the land of the victim and

also from his native land. Who could have enacted such laws except an

international authority?

The operation of such an authority is also revealed in the laws regarding

ἀνδροληψία, or the seizure of hostages, when a murderer was not tried or

punished by a ‘foreign’ State. A law which is attributed to Dracon, but

which clearly must have had its origin in some national or central Greek

authority of pre-Draconian days, reads as follows[200]: ‘If anyone dies

a violent death, his relations shall be entitled to take hostages on his

behalf, until (the people concerned) either challenge a verdict of murder

at a trial (δίκας τοῦ φόνου ὑπόσχωσιν) or extradite the slayers: and

the taking of hostages shall extend to three persons but not more.’ The

meaning of the law may be thus illustrated: if an Athenian slew a Theban

at Argos, and if the Argives ignored the deed, and no one prosecuted the

slayer, the relatives of the Theban could come to Argos and seize the

first three men whom they met, and hold them as hostages till the Argives

either tried the slayer or handed him up to the Thebans. We have taken an

extreme case, but it is such a case which Demosthenes has in mind when he

comments[201] on the law. In historical Greece, the duty of prosecution

was normally limited to the relatives of the slain. The slaying of

strangers was therefore likely to pass without prosecution. But this

right of ἀνδροληψία was an important corrective of the laxity of this

system. Relatives, living at a distance, ignorant of the actual slayer,

might be regarded as impotent since they knew not whom to accuse. But the

seizure of hostages would speed up the revelation of the criminal!

We may distinguish three different cases of ἀνδροληψία. (_a_) If an

Athenian slew a Theban at Thebes, that is, if a stranger slew a citizen,

then the relatives of the slain who were on the spot could ascertain

easily enough the identity of the slayer and could put him on trial. If

after conviction he fled to his native State, that State was bound to

put him to death. If he remained after trial in the State of the slain,

which, in this case, was also the State in which the deed took place,

he was also put to death. But if he fled before trial to his own State,

and if his fellow-citizens did not try him and punish him, or arrest

and surrender him, the relatives of the slain could legally seize as

hostages three of his fellow-citizens. (_b_) If an Athenian slew a Theban

at Athens, that is, if a citizen slew a stranger, then the relatives of

the slain, being aliens, had the right to prosecute through a προστάτης;

but if the slayer was not tried or surrendered, seizure of hostages

followed, for such seizure was the only means by which this result could

be secured, and ultimately the slayer was debarred both from Athens

and from Thebes. (_c_) If an Athenian slew a Theban at Argos, and if

the slayer remained at Argos, unpunished, or if he fled to Athens and

enjoyed immunity there, the relatives of the slain Theban were entitled

to seize three Argives or three Athenians, as the case might be, in order

to compel his surrender. The city which harboured him had either to put

him on trial or to give him up to the relatives of the slain. We may

infer from Plato that, if he were convicted of manslaughter at Argos,

his punishment would have been more severe than if he were convicted at

Athens of slaying an Athenian in Athens! But we presume that he could

have elected to stand his trial at Athens, if the Theban relatives agreed

to accept the verdict of an Athenian court.

The wording of the Draconian extradition law is vague and incomplete. The

emergencies which it does not expressly indicate were no doubt provided

for by an Apolline Amphictyonic code, which was either unwritten or, if

committed to writing, was kept secret, or if promulgated, has left no

trace of itself in inscriptions or in literature. But we fail to see

how even the Draconian law could have ever originated in any one State,

or in the mind of a single legislator. We believe that it was, on the

contrary, of international or Amphictyonic origin. We have suggested,

moreover,[202] that the homicide penalties of historical Greece were the

result of a compromise between the religion of Apollo and the traditions

of local State-gods and of the Erinnyes who represented the wrath of

the slain and the desire of the relatives for retribution. Does not this

theory help to explain and does it not therefore derive support from the

fact that the punishment of homicide was most severe and the duty of

prosecution most widely diffused in the case of homicide committed in a

State in which both slayer and slain were legally ‘strangers’?

Glotz,[203] who sees in the protection of a murderer’s life ‘abroad’

(which means, as we now see, anywhere outside the one, two, or three

States which might be involved in the case) the operation of treaties

of ἀσυλία or Refuge between individual States, explains the extradition

law regarding the seizure of hostages as an ancient tradition of the

clans. Indicating the contrast which exists between ancient and modern

extradition, he observes[204]: ‘En Grèce, l’extradition a de bonne heure

figuré dans le droit des gens. Mais elle n’était pas du tout à l’origine

ce qu’elle est devenue. Les peuples civilisés des temps modernes ont pour

principe de livrer des étrangers présumés coupables de crimes commis en

pays étranger, mais non pas leurs nationaux, même pour crimes commis

sur terre étrangère. Les anciens se faisaient un point d’honneur de ne

pas abandonner le malheureux qui s’était enfui sur leur sol et confié

en leur protection. L’hôte est toujours sacré: le foyer d’une cité est

un asile inviolable ... c’est l’extradition telle qu’ont pratiquée

longtemps les Aryens, _ut populus religione solvatur_.’ It was, according

to this view, only a sense of honour, a fear of violating the sacred

rights of hospitality, which gave to Greek extradition law its peculiar

characteristics. But criminals cannot claim any right of hospitality, in

the ordinary sense. Moreover, Glotz forgets that a Greek State had to

expel or deliver up a stranger if the deed of blood was committed in its

territory. It also had to give up its ‘nationals’ if these ‘nationals’

had slain foreigners at home or abroad. Glotz draws too fine, too neat a

contrast between ancient and modern extradition. He does not explain the

origin of the ancient system. To say that it existed in early clan-law

but that it developed later into something quite different is not an

explanation of it. Clan-extradition arose, we believe, as a solvent of

war between the clans concerned. The tribal court or the city court may

possibly have acted in Pelasgian times as a medium for the operation of

this solvent. But the historical system of extradition, with all its

minute differentiations and variations, bears, we think, the stamp of

Amphictyonic legislation in the age of aristocratic rule in Greece, or in

what we may call the Apolline era. It was only when homicide became an

offence against an international god at Delphi, that is, in the seventh

century B.C., that such legislation came to be applied to this kind of

‘crime.’ This is our explanation of the origin of the law. It was an

international compact issued in the form of an oracle.

As an illustration of the interference of oracles in international

disputes we will cite one or two passages from Herodotus. At the battle

of Thermopylae in 480 B.C. Leonidas, the famous king and commander of

the Spartan band, was slain, and Xerxes, the Persian king, mutilated

the corpse by decapitation and crucifixion.[205] This act is regarded

by Herodotus as a barbarous violation of the customs of war, and is

attributed by him to the rage and anger of Xerxes at the time. The

Spartans seem to have been able to present the act afterwards as a case

for damages, and they secured the support of the Delphic oracle. When

the Persians had failed in their expedition against Greece, and Xerxes

was returning to the Hellespont, ‘an oracle came from Delphi to the

Lacedaemonians bidding them ask satisfaction from Xerxes for the death

of Leonidas and accept that which should be given by him.’[206] Xerxes

ridiculed the suggestion at first, but later he referred the herald to

Mardonius, who would, he said, pay satisfaction. At the battle of Plataea

Mardonius was slain, and then, says Herodotus,[207] ‘the satisfaction

for the death of Leonidas was paid by Mardonius according to the oracle

given to the Spartans.’ Again, we are told[208] that after the Persian

conquest of Lydia, Cyrus charged Mazares to bring to him alive a certain

Pactyas, a leading anti-Persian rebel. Pactyas fled to Kyme, and when

messengers came from Cyrus demanding his ‘extradition,’ ‘the Kymeans

resolved to consult the deity at Branchidai as to the course which they

should follow.... For there was there an oracle established of olden

time, which all the Ionians and Aeolians used to consult’: and ‘when they

thus inquired, the answer was given them that they should deliver up

Pactyas to the Persians.’ Herodotus says that the Kymeans did not give up

Pactyas, as they suspected the oracle of political designs. Later, the

oracular shrine informed them that they were bidden to deliver up Pactyas

only in order that they should be punished by the gods for contemplating

the violation of a suppliant’s rights! This does not imply, as Glotz[209]

supposes, that such rights belonged to murderers, for Pactyas was not a

murderer. We cite the passage here merely to illustrate the custom of

consulting oracles in ‘extradition’ disputes.

The theory which connects Apollo with the doctrine of homicide as a

‘pollution’ finds further confirmation in many Greek legends. The

story of the purgation of Ixion by Zeus, which is first referred to

by Pindar[210] and by Aeschylus,[211] is, we think, an instance of

‘reconstruction,’ or ‘retrojection,’ on the part of legend-makers who

were less concerned with the matter of consistency in the character

of Zeus than with the maintenance of his exalted rôle in the Olympian

religion of post-Homeric days, which tended to extol Apollo the Son over

Zeus the Father. Sidgwick’s view[212] that this legend originated in

an attempt to derive the name _Ixion_ from the root ἴκ as found in the

words ἱκέτης and ἱκετεύειν (which refer to suppliant-rights) seems to us

very probable. Pindar has perhaps been misinterpreted by Verrall[213] in

the translation of ἐμφύλιον αἷμα as kindred-murder. We have seen[214]

that the word ἔμφυλος sometimes carries this meaning in Homer. But in

the Pindaric narrative it was his father-in-law whom Ixion slew, and

fathers-in-law are not, as a rule, akin in blood to their sons-in-law,

though they may belong to the same tribe (φυλή). Pindar asserts that the

act of Ixion was malicious: but we have said[215] that for malicious

kin-slaying purgation was not possible: ‘Of a kindred blood defiled,’

says Plato,[216] ‘there is no other cleansing ... before the life that

has sinned shall pay kin blood for kin blood.’ Hence, it is necessary

to suppose that Ixion was not akin to his victim. The legend of the

purgation of Ixion is open to suspicion on the further ground that Ixion

is said[217] to have been the first who ‘supplicated’ for purgation,

and is said to have been purged _by Zeus_. Now Apollo, not Zeus, was

the pioneer amongst the Purifying gods (καθάρσιοι θεοί). It was Apollo

who purified Orestes, in the legend which Aeschylus follows in the

_Eumenides_.[218] ‘Mine was the house,’ says Apollo, ‘and mine the hearth

which received this suppliant, and I am the purger of his blood-guilt.’

We shall see, later,[219] what a difficult problem the Homeric saga of

Orestes presented to the legend-makers of the ‘Apolline’ era (750 B.C.

onwards). There was only one means by which the Homeric story could be

retained without assuming an atrocious indifference to kin-slaying on the

part of the Homeric Greeks: namely, by representing the act of Orestes

as in some way justified. But the Apolline code, if we may regard Plato

as a worthy exponent of it, did not admit a plea of justification for

the slaying of a parent in any circumstances. ‘In what other way (than

by death),’ says Plato, ‘would it be right to punish one whom no law

will permit, even in self-defence and in danger of his life, to slay

his father or mother ... and whom (the legislator) will bid to suffer

anything rather than perpetrate such a deed?’[220] We are convinced

that there was one thing, and one thing only, which would have been

accepted by Plato as a justification for such an act, namely, the express

command of Apollo himself. Apollo was the reputed founder of the Attic

Court Delphinium; he was regarded as the initiator of the distinction

between just and unjust slaying[221]: he appointed and controlled the

Exegetae or the Sacred Interpreters of the laws of ‘purgation’[222];

surely his command, impossible to disobey, would have been admitted as

a justification for the deed of Orestes. In the _Eumenides_[223] of

Aeschylus, Orestes says to Apollo: ‘Be thou my witness: show, Apollo,

whether I slew her justly. The fact of slaying I do not deny: do thou

decide whether in thy judgment I slew her justly or not, that I may tell

these judges here.’ And Apollo replies[224]: ‘I am a prophet and will

not deceive: never, in my oracular shrine, have I said aught that Zeus,

the father of Olympian gods, doth not command. Take note, ye judges, of

the value of such a justification.’ So, in the _Electra_ of Sophocles,

Orestes says[225]: ‘When I approached the oracular shrine of Pytho, to

learn whereby I might punish the murderers of my sire, Phoebus made

answer: “No host of shielded warriors, but thine own guileful craft, O

prince, and thine own arm shall deal the death-blow righteously.”’ Even

in the _Orestes_ of Euripides, a drama in which, as we shall see,[226]

the plea of justifiable matricide is almost entirely absent, Orestes

tells the Chorus[227]: ‘Behold! Apollo, who in his palace in mid-earth

gives to mortals oracles most clear, by whom we are entirely guided—him I

obeyed when I slew my mother. ’Twas he who erred, not I. Is it not enough

to remove “pollution” if I transfer the guilt to the god?’

Again, in the post-Homeric form of the legend of the Theban Oedipus, it

is Apollo who commands the Thebans to search for the murderer of Laius,

and, when they have found him, to put him to death or to drive him from

the land.[228] In this option of death or exile we have the normal

Attic, and, therefore,[229] the normal Greek penalty for wilful murder.

The direction which Apollo gives, in the _Oedipus Rex_ of Sophocles,

is quite general.[230] Apollo speaks therefore as a lawgiver, and as a

deity angered by unpunished homicide, rather than as a prophet; since he

conceals for a time his knowledge of the slayer of Laius. In historical

Greek law the penalty for parricide was invariably death. If Apollo

had proclaimed the death penalty without the option of exile, for the

slayer of Laius, the famous drama of Sophocles would have had to be

considerably if not fundamentally altered. The area of the ‘search’ would

have been limited to the kinsmen of the deceased Laius. The Homeric

story of Oedipus is so very different from the later ‘tragic’ story that

the evolution of the legend must have been attended with considerable

difficulty. Legend-makers could not ignore the Homeric saga which

told[231] how Oedipus, having slain his father, ruled over the Cadmeans,

even though ‘the gods revealed these things to men.’ How was this fact

to be explained from the standpoint of the post-Homeric doctrine of

‘pollution’ according to which all wilful parricides were inexorably put

to death? We have suggested that Homer did not understand the mysterious

immunity of Oedipus, and that this immunity was derived from a Pelasgian

story, based on Pelasgian legal distinctions, to the effect that Oedipus

did not really know that it was his father whom he slew, and that

therefore Oedipus could not be regarded as a parricide of full guilt.

It is also possible to suppose that the old Pelasgian story contained a

reference to a further extenuation of Oedipus’ guilt, namely, a certain

_provocation_ on the part of Laius and his attendants; Sophocles says

that Oedipus was insulted by the herald of Laius and that Laius smote him

on the head with his goad.[232] Sophocles tells us also that when all the

facts concerning the death of Laius had come to light, Kreon, instead

of proceeding to punish Oedipus, decided to consult again the oracle

at Delphi. Thus, when Oedipus, anxious to avail himself of the option

of exile, asks Kreon to drive him from the land, Kreon answers[233]:

‘Assuredly I should have already done so, did I not first desire to

learn from the god what should be done.’ Now if the deed of Oedipus had

nothing to extenuate it beyond the fact that he did not know his father

when he slew him, he would still have had to suffer the penalties of

wilful murder, namely, death or perpetual exile. If, then, Kreon did not

immediately proceed to punish Oedipus, but consulted Apollo a second

time, this must be attributed either to the element of involuntariness or

to the element of provocation, or to both these elements in the legend

of Oedipus. These elements of provocation and involuntariness are most

important for the legal intelligibility of the _Oedipus Coloneus_, as we

shall see later.[234] At present we wish to emphasise the fact that this

legend, like the legend of Orestes, became, so to speak, ‘Apollinised’ in

post-Homeric times. Such transitions are only intelligible if we assume

a connexion between Apollo and ‘pollution.’ We may infer that, in the

post-Homeric legend, Apollo took a lenient view of the guilt of Oedipus,

from the fact that, in the _Oedipus Coloneus_, the responsibility for his

continued exile is laid not upon Apollo, but upon Kreon and the sons of

Oedipus, who wish to enjoy the vacant throne of Thebes.[235] According to

Euripides,[236] Oedipus’ sons imprisoned him, but Kreon drove him into

exile.

In the _Orestes_ of Euripides[237] it is Apollo who saves Orestes from

the wrath of the Argives who have condemned him to death. Apollo decrees

that, when Orestes has endured a period of exile and has submitted to a

trial at Athens, the Argives must accept as their king a man whom they

had already deemed worthy of an ignominious death! In the _Electra_ of

Euripides,[238] Castor and Pollux refer, by way of prophecy, to the fact

that Apollo will ultimately secure Orestes’ deliverance from the Erinnyes.

In the _Ion_ of Euripides[239] the Pythian priestess of Apollo commands

Ion not to slay Creusa, who had attempted to poison him, and who

otherwise would have urged in vain her plea of self-defence and the

sacredness of her sanctuary.

In the _Andromache_ of Euripides, Apollo is criticised for having

permitted the slaying of Neoptolemus within the precincts of the temple

at the hands of Orestes and the Delphians. The Messenger says[240]: ‘Thus

has the Lord who gives oracles to others, who is the umpire for all

men of what is right, requited the son of Achilles ... like any wicked

mortal, he stores in his memory an ancient quarrel.’

Thus the conception of homicide as a pollution permeates all Greek

tragedy: however various the legends, however different the localities

to which they refer, they all breathe the same Apolline atmosphere. We

have already[241] quoted Herodotus’ opinion as to the universality of

the ‘purgation’ rites by which the pollution of homicide was cleansed.

If it be true, moreover, that the laws which regulated the historical

Greek treatment of homicide were more or less identical in all the more

important and advanced Greek States, would not this fact suggest that the

origin of these laws must be sought, not in the genius of occasional

local legislators, but rather in the simultaneous universal operation of

identical causes? One of these causes, we believe, was the doctrine of

pollution.

The legends of Attic tragedy on the whole suggest a uniform system of

murder-law in historical Greece. In Euripides’ _Orestes_[242] we are

told that Orestes did not follow ‘the common law of the Greeks.’ In

the _Heracleidae_,[243] Eurystheus, referring to a threat of murder on

the part of Alcmene, says: ‘By the laws of the Greeks, if I am slain I

shall cause my slayer to be polluted.’ In the _Hercules Furens_,[244]

Hercules, the slayer of his children, feels that men’s doors will

be closed against him in all parts of Greece, without exception. We

have already[245] referred to the possibility that a more severe code

of penalties for homicide existed at Sparta than in other parts of

Greece. Xenophon[246] says that a certain Dracontius was condemned to

perpetual exile for involuntary homicide. If we have here a really

exceptional penalty, we must attribute it to the peculiarly military

character of the Spartan State. But can we be sure that the penalty

was exceptional? Plato decrees perpetual exile for involuntary slaying

between strangers in any given State[247]; moreover, for slaying in a

passion, which is quasi-involuntary, he decrees perpetual exile for the

second offence.[248] Xenophon does not give us sufficient details about

Dracontius to enable us to regard this penalty as a definite exception.

Again, in regard to Crete, we have indicated[249] the absence of any

reference to wergeld in the laws of Gortyn. This shows the influence

of some universal Greek doctrine which led to its abolition. The fact

that Apollo was said to have received many of his Delphic priests from

Crete,[250] and the fame of the Cretan purifier, Epimenides, in the

seventh century B.C., point to the same conclusion.

WERGELD AND PRIVATE SETTLEMENT

We must now discuss more fully the question: did the pollution doctrine

abolish wergeld? We can answer this question satisfactorily by merely

answering another question which is intimately connected with it,

namely: ‘was “private settlement” legal in historical Athens?’—‘was it

lawful for the relatives of the slain, if they so wished, to abstain from

prosecution, and could they legally accept from the slayer a bribe or a

gift if they so abstained?’ We do not deny the fact that such settlements

did occasionally take place; but if these settlements were legal, then

our theory that pollution abolished wergeld cannot stand. We are glad

to be able to quote the authority of Philippi[251] in favour of the

illegality of ‘private settlement,’ but as the arguments of Philippi are

rejected by Glotz,[252] we must in turn reject the arguments of Glotz!

It is strange that Müller, who holds[253] that wergeld originated in

‘pollution,’ maintains that in historical times ‘private settlement’ was

not valid except in cases of involuntary slaying.[254]

For the sake of clearness we will summarise our own conclusions in

advance. We believe that ‘private settlement’ was permitted by law or

custom—it was not _expressly_ prohibited or permitted by any written

code—whenever a ‘release’ from blood-guilt on the part of the victim,

before death, was _formally granted_, or, in the absence of a ‘charge,’

could be _tacitly assumed_; but that otherwise ‘private settlement’

was a sin, a religious quasi-criminal offence, and must therefore

have been legally invalid, in the sense that the offender was liable

to prosecution.[255] This view is not only consistent with, but is in

part derived from, our theory of the incompatibility of ‘pollution’ and

wergeld. ‘Private settlement’ is not, of course, wergeld in the strict

sense, but it has this much in common with it, that it allowed the slayer

to remain in his native State for the rest of his life. His presence was

not a cause of pollution.

We have seen[256] that the Greek religious doctrine of homicide as a

‘pollution’ expresses a compromise between the newly evolved power of

synoekised States and the traditions of the tribes, between the ideals of

an international autocratic Apollo and the claims of the Erinnyes of the

slain who reflected the desires of the dead and of their relatives. It

follows that whenever the laws which resulted from this compromise were

observed, whenever the prescribed penalty or atonement was paid, Apollo

and the Erinnyes were logically compelled to accept the ‘appeasement’

and to signify by their consent, in certain cases, to the ceremonial

of ‘purgation’ that the ‘pollution’ of the criminal was washed away.

But it was never forgotten that, in theory, the pollution of the slayer

had a twofold source: that the stigma of bloodshed was, so to speak,

bicellular, and was expressive of the anger of Apollo, on the one hand,

and of the anger of the Erinnyes on the other. It is obvious, therefore,

that a ‘release’ on the part of a dying victim precluded any serious

anger on the part of the Erinnyes, whereas a victim’s solemn command

to his relatives to prosecute his slayer[257] set in motion the entire

supernatural vigour of the avenging Erinnyes. Thus in the _Eumenides_

of Aeschylus[258] the Furies tend to go to sleep and to forget until

they are goaded into activity by the ghost of the slain Clytaemnestra.

Hence it is correct to maintain that in the event of a formal or

presumed ‘release’ on the part of a dying victim, the slayer was not

in any real sense polluted. In such cases, the slayer may have had to

undergo ‘purgation’ of a minor kind, one of these local supplementary

‘purgations’ which were intended to free the citizens from religious

scruple.[259] Purgation, we have said, was not symbolical of guilt, but

rather of atoned guilt or of innocence. But in such cases the slayer was

not really ‘polluted.’ His presence in his homeland did not anger the

dead or the gods. But if the dying victim did not formally release his

slayer, if he charged his relatives to prosecute, then in all cases,

even in the event of justifiable homicide, the slayer was ‘polluted’

until he was formally purged. This purgation could not be performed

by any ordinary person or at any ordinary time. The conditions of its

performance were regulated by Delphic law and by State law. Once charged

by the relatives of the slain, the accused had either to admit guilt

or to advance a ‘plea,’ and the civic penalty had to be paid before

purgation was permitted.

It is difficult to understand how Glotz can attribute to ‘pollution’

a considerable influence in abolishing ‘private vengeance’ and in

necessitating State interference in homicide,[260] and at the same time

maintain[261] that in historical State justice ‘private settlement’ was

legal as an option for prosecution. Attic law proves that the slayer was

‘polluted’ during the long period of time—three or four months—which

intervened between the first public accusation, at the funeral of

deceased, and the trial.[262] He could not enter the city temples, or

frequent the public places, under penalty of death. Glotz admits[263]

that a person who was accused but unconvicted of murder was ‘polluted,’

but he seems to think that the pollution could be privately purged or

ignored altogether. ‘Before the public _accusation_,’ one may say,

‘the slayer was not polluted.’ He was perhaps not publicly known to be

‘polluted,’ we admit. But in reality we believe that he was polluted

when the ‘victim’ died without ‘release.’ If the relatives chose to hush

the matter up, this did not destroy the real ‘pollution.’ If the matter

became known to the public, these relatives could themselves be indicted

on a charge of impiety.[264] They had broken the religious laws, the

unwritten customs, of the State. They could not righteously ‘settle’

except in the event of ‘release.’

We will now support and illustrate our views by a few quotations.

Demosthenes[265] tells us that ‘if the victim (ὁ παθών) himself releases

the slayer from guilt of blood before he (the victim) dies, it is

not lawful for the relatives to prosecute.’ This is a most important

piece of evidence, although the context in which it occurs is vitiated

by rhetorical exaggeration. It means, in effect, that in any kind of

homicide[266] the relatives of the slain were powerless in regard to

prosecution if the dying man ‘released’ his slayer and did not ‘charge’

them to avenge him. Thus even the homicide laws of a theocratic Apollo

and of centralised Greek governments depend for their operation on the

will of the victim. In such an event the slayer was not ‘polluted.’ No

impiety, no illegality was involved in ‘private settlement’ in such a

case; on the contrary, to prosecute the slayer would probably have been

impious. Not even a charge of involuntary homicide (which was possible

in the case of simple ‘forgiveness’ on the part of the dying) could be

brought against the slayer, if the victim ‘released’ him from all guilt

of blood. This decree of the dying was tantamount to a ‘release’ in law;

it did not merely reduce the charge to one of justifiable or accidental

slaying. Hence the ‘private settlement,’ which no doubt occasionally

occurred in such cases, was not so much a bribe offered to prevent

prosecution as an informal offer of material retribution—a relic of the

old-time wergeld traditions of tribal Greece.

In a speech of Lysias which is concerned with political or judicial

murder, we are told[267] that one of the condemned, named Dionysodorus,

summoned his brother and sister and brother-in-law to prison before he

died and charged them ‘and all his kindred’ (φίλοις) to punish as a

murderer Agoratus who had given the false information which led to his

condemnation. Thus we see converted into a charge of wilful murder an

act which ordinarily would have been regarded as political perjury. The

relatives of Dionysodorus actually decided to take the law into their own

hands[268]—political ferment demands such drastic action—and they would

have slain Agoratus as a criminal (κακοῦργος) if Anytus, the general,

had not persuaded them, on grounds of public policy and expediency, to

desist. The Thirty Tyrants acquitted Agoratus later, presumably because

of political prejudice. The plaintiff in this speech[269] appeals to the

Heliasts to do the pious and just thing and to condemn him to death.

Thus we see how the relatives of a slain man were directed and compelled

by the ‘charge’ of the dying. There was nothing involuntary about this

case of homicide, as some writers seem to assume.[270] It was deliberate

political murder.

Müller says[271]: ‘When a verdict of manslaughter was returned it was

allowable for the prosecutor and the accused to enter into a compromise

on the spot, if they pleased.’ He admits, however, that ‘in the regular

mode of procedure, the convict quitted his country by a certain road

and at a certain time and remained absent’ until he ‘appeased’ the

relatives of the slain, ‘whereupon he was permitted to return home under

certain prescribed forms, and, after the due performance of sacrifices

and rites of purification, he was at liberty to dwell once more in his

native land.’ The question of the ‘appeasement’ of relatives after

exile in cases of involuntary homicide will come up for discussion

later.[272] At present we are speaking of ‘compromise,’ or of ‘private

settlement,’ without exile: we may note Müller’s admission as to the

‘regular mode of procedure.’ He cites no authority for his statement

about a ‘compromise.’ Plato uniformly insists that a period of exile was

always compulsory in cases of involuntary homicide.[273] ‘Forgiveness’

on the part of the ‘dying’—as distinct from ‘release,’ which Plato has

not in mind[274]—always reduced the charge to one of manslaughter.

Hence we have argued that ‘release’ abolished all guilt and pollution.

Speaking of ‘forgiveness’ Plato says[275]: ‘If any person of his own

accord gives an absolution (ἄφεσις) to anyone for such a deed let the

purgations take place for the slayer as if the act had been involuntary

and let there be a period of one year in exile according to law (ἐν

νόμῳ).’ Speaking of general cases of manslaughter, he says[276]: ‘If

anyone kills involuntarily a freeborn person, let him be purified

with the same purgations as he who has killed a slave and let him not

dishonour a certain ancient legend ... hence the slayer must withdraw

(into exile) ... for all the seasons of a single year.’ The legend which

Plato mentions is suggestive: ‘A freeman slain by violence was,’ he says,

‘angry with his murderer while his death was still recent ... and seeing

his slayer roaming about in the places which he himself frequented (when

alive) shuddered at the thought and, sore distressed, harasses with all

his might the slayer and his movements, using memory as an ally in the

task.’ Here we can plainly detect that minor local ‘pollution’ which was

caused by the temporary resentment of the slain, and such ‘pollution’

could only be removed by a period of exile. There is a difference, then,

between ‘release’ and ‘forgiveness.’ In the latter case the slayer was

still ‘polluted’: the ghost has absorbed the anger of the gods which

is caused by the shedding of blood. Hence we think that the relatives

were not free, in such a case, to ‘compound’ with the slayer except at

the risk of incurring the anger of the dead and of the gods. We agree

with Müller’s statement regarding Plato[277]—namely, that his ‘scheme of

criminal law is in the main based on the same principles as the Attic

code.’ But in his theory of the legality of ‘private settlement’ in cases

of manslaughter Müller seems to have omitted to notice these passages

which we quoted from Plato. He was probably influenced, in his judgment,

by one or two passages in Demosthenes which are obviously rhetorical and

which we shall presently discuss.[278]

Glotz also attaches considerable importance to such Demosthenic passages,

forgetting that they are not legal documents and that they are, moreover,

inconsistent with other passages from the same author. Glotz is anxious

to establish the theory that wergeld was abolished in Athens not by

Dracon, as is generally held, but by Solon, who sought to exalt the

power of the State and to weaken the influence of the clans. To arrive

at this conclusion, Glotz boldly assumes that a certain clause in a

Draconian law, namely that which forbade the acceptance of ‘ransom’ from

a murderer found in his home-land after conviction, was not inscribed by

Dracon but by Solon.[279] Our opinion is that neither Dracon nor Solon

abolished wergeld, but that it had been already rendered sacrilegious by

the Apolline doctrine of pollution in the seventh century B.C. The laws

of Dracon do not anywhere mention real wergeld—they simply assume that

such a system was obsolete. But the phrase μηδ’ ἀποινᾶν in the Draconian

law,[280] which is usually but quite erroneously connected with wergeld,

suggests, if it does not prove, what Glotz would not apply to the period

of Dracon or of Solon—namely, the fact that ‘private settlement’ was

illegal. Why should a law forbid the ‘ransom’ of a murderer’s life

after conviction if it permitted such a ‘ransom’ before conviction?

Leaving aside religious considerations, which we, however, believe to be

essential to the matter, and viewing the question from the standpoint of

Glotz’s own pet hypothesis as to the exaltation of State power,[281] we

believe that the opposite procedure would have been more logical—that a

State would more naturally have prohibited ‘ransom’ before conviction,

but permitted it afterwards, when the property of the slayer had found

its way into the coffers of the State, and when the State had extracted

all that it could possibly extract from the unfortunate slayer! But,

as a matter of fact, the ‘ransom’ which is prohibited by this law of

Dracon was not a real ‘ransom’ of the slayer’s life in the legal sense.

It refers only to a slayer caught ‘en rupture de ban.’ It was merely a

bribe which the slayer would be disposed to offer to any citizen whom he

encountered in order to be allowed to escape from forbidden territory.

His life was still forfeit if he returned again, or even if he did not

succeed in escaping after he had bribed, say, one citizen, out of the

total number of citizens in the State. The law says: ‘It shall be lawful

to kill murderers (found) in our territory ... but not to amerce them.’

The penalty for ‘amercement’ was ‘double the amount extorted.’ To our

mind the law suggests the illegality of ‘private settlement’ rather

than the abolition of wergeld! Glotz, moreover, seems to ignore the

Demosthenic references to a γραφὴ ἀσεβείας, an indictment for impiety,

which could be brought against the relatives of a slain person if they

did not prosecute the slayer. We need not dwell upon the importance of

a γραφὴ in Attic law. It denoted a most important species of public

accusation, similar to our modern indictments or impeachments. Human

nature being what it is, and Greek human nature being what it was,

can we conceive that a Greek would have omitted to propose a ‘private

settlement’ if it had been legal for him to do so, as an option for

prosecution? Can we conceive that prosecutions for homicide would ever

have occurred if such an option would have freed the relatives of

the slain from liability to a charge of impiety which involved their

banishment and the confiscation of their property? We must then rather

assume that the guilt of impiety would have been still incurred if the

relatives of the slain accepted ‘settlement’ and failed to prosecute.

Glotz makes no reference to the γραφὴ ἀσεβείας. We agree with him[282]

that there was no γραφὴ φόνου in Attic law, but we do not understand

why he should credit Solon with the institution of γραφαί for ὕβρις and

κάκωσις, but omit to mention ἀσέβεια. The indictment for impiety, which

we attribute to Solon,[283] is incompatible with ‘private settlement’

for homicide, which Glotz believes to have been legal in the days of

Demosthenes as in those of Solon. Let us see what Demosthenes has to say

of this indictment.

In his speech against Androtion[284] a certain Diodorus says of

Androtion: ‘He accused me of a deed which anyone who was not of his

type would have been afraid to mention, namely, of slaying my own

father: he prepared an indictment of impiety[285] not against me, but

against my uncle, impeaching him for impiety in associating with one

who, as alleged, had committed this crime; he put him on trial, and

if he happened[286] to be found guilty—what man would have suffered a

more cruel fate than I would at this man’s hands? What citizen (φίλος)

or stranger would have ever consented to associate with me? What city

(_i.e._ State) would have tolerated within its precincts a man who

appeared to have perpetrated such an impious deed? None whatever.’ It is

noteworthy that the indictment, which is here referred to, was brought,

not against the alleged parricide, but against his uncle. The reason is

not, as Glotz would maintain,[287] that parricide was not a crime in

historical Athens, but that direct prosecution of homicides was limited,

by a legal technicality, based on immemorial custom, to the relatives of

the slain. If Glotz’s theory of unrestrained ‘private settlement’[288]

is assumed, what a glorious hunting-ground for unscrupulous blackmailers

must Athens have been! We can conceive Diodorus’ uncle approaching

Diodorus with his hand outstretched and crying ‘Your money or your

life’! We can also conceive any outsider—there is no limit to the

number—approaching the uncle of Diodorus equally determined to ‘settle’

the indictment for impiety! This is much too absurd for reality, even

in a modern State, not to speak of the ancient city with its ubiquitous

gods and ghosts and scruples! This passage explains, incidentally, an

episode in the _Euthyphro_ of Plato.[289] Euthyphro proposes to accuse

his father of homicide, since a poor freeman in his employment at Naxos,

whom his father had put in chains and cast by the wayside to await the

decision of the Exegetae regarding the slaying of a slave by his freeman

employee, had died of hunger and neglect. Socrates asks if Euthyphro is

a relative of the freeman. Euthyphro says that he is not, but that he is

‘polluted’ by associating with his father who is a murderer, and that he

is therefore bound to prosecute him. Plato, as we have said, is probably

here posing a problem which the Attic legal mind would have found it

difficult to solve. But the atmosphere of the dialogue is very far

removed from that of ‘private settlement’ for homicide.

That the action of Euthyphro was from one point of view impious

(ἀνόσιος), which is to say of doubtful legality, is suggested by another

passage in Demosthenes.[290] A nurse in the employment of the plaintiff

died as a result of rough treatment at the hands of two men who came to

his house to distrain his goods and chattels. The plaintiff tells how

he went to the Interpreters to ask their advice. The Interpreters said

that the only course which was open to him in law was ‘to carry a spear

in front of the funeral procession, and at the tomb to publicly inquire

(προαγορεύειν) if the woman had any relative, and to watch the tomb for

three days’! ‘For the woman,’ they said, ‘was not akin to you, nor even

a slave of yours ... and it is to relatives and “masters” that the law

assigns the duty of prosecution.’ The plaintiff then looked at a copy

of Dracon’s laws and consulted his friends, and taking into account the

fact that he was not a personal witness of the assault and could not find

any witnesses that would weigh with a court, he obeyed the Interpreters,

and refrained from further action. The Draconian law required, we are

told, that in taking the oath in a murder charge the accuser had to

state definitely in the court in what relationship he stood to deceased

or whether the deceased was his slave. This technical legal condition,

the demands of this legal formula, could not be complied with by the

plaintiff. Hence it is doubtful if Euthyphro could have complied with

them, unless, perhaps, he regarded himself as a kind of ‘master’ in

relation to the deceased freeman.

But the indictment for impiety was based on the religious doctrine of

pollution rather than on clan-technicalities connected with funerals and

burial and obsolete wergeld agreements. It is an instance of unsolved

conflict between these two systems which we find in the _Euthyphro_ and

in the speech _against Androtion_—a conflict which was in other respects

mitigated by the compromise we have described[291] in historical Greek

homicide law. The indictment for impiety could be brought by any citizen

against the relatives of a murdered man, if they failed to prosecute,

and if the dying man had not given a ‘release.’ If such failure to

prosecute was impious, then surely a ‘private settlement’ which prevented

prosecution was also impious.

We will now examine two passages—one from Demosthenes, the other

from Aristophanes—which Glotz quotes in support of his theory of the

legality of ‘private settlement.’ Glotz’s theory is clearly stated in

these words[292]: ‘Il est improbable que la réconciliation ait été

explicitement interdite et le silence de la loi valait une permission.

Par autorisation formelle ou par tolérance, ouvertement ou tacitement

l’Etat devait consacrer dans tous les cas le privilège de la famille.’

The only thing, in Glotz’s view, that would have forced a ‘recourse to

the State’ was the absence of unanimity in the relatives concerning the

amount for which they would ‘settle.’ One dissentient voice compelled a

recourse to prosecution.[293]

In the speech of Demosthenes _against Theocrines_[294] we read that a

certain Theocrines whose brother had been murdered threatened to bring

Demochares, the alleged murderer, before the Areopagus, unless he paid

him a sum of money. The money was paid, and that was the end of it! The

relevant passage reads: ‘Not very long after his dismissal, his brother

was slain by violence. Mark how he behaved! He made inquiries as to

the murderers, and having discovered who they were, he accepted a sum

of money and abandoned further proceedings. He went round threatening

to bring Demochares before the Areopagus until he “compounded” with

the guilty parties. What an honest and trustworthy man!’ Philippi’s

conclusion[295] that the action of Theocrines was illegal does not

convince Glotz, who inquires[296]: ‘Qu’est-ce donc qui retient Démosthène

de flétrir un tel pacte comme illicite?’ But it is quite obvious that

the action of Theocrines is presented by Demosthenes as unusual and

disgraceful. The object of Demosthenes, in the speech, is to emphasise

the mercenary character of Theocrines. He is more concerned with this

aspect of Theocrines’ action than with its legality or illegality. We

may therefore answer Glotz’s question by asking another: ‘If this action

was legal, why does Demosthenes refer to it as a disgrace?’ Or, again:

‘Could an act be described as illegal which was not expressly prohibited

by law?’ Glotz in seeking to prove that ‘private settlement’ was legal

infers that it was legal because it is not here declared illegal! This

argument seems to us invalid. Demosthenes wrote speeches for private

and public litigants. Sometimes he emphasised one point, sometimes the

opposite point. He does not wish to stultify himself unnecessarily. He is

not a self-constituted legislator, as Plato, in his ideal world, was. He

leaves the legal decision to the jury and aims merely at a victory in the

suit. Moreover, we must point out, in Attic law there was a Statute of

Limitations. If Theocrines kept his secret to himself, and if he had no

religious scruples about the matter, he could, after a number of years,

have divulged it with impunity. But Demosthenes speaks as if the whole

action only took twenty-four hours! This may be excellent rhetorical

skill, but it may also involve a complete distortion of facts. We admit,

of course, that ‘private settlements’ for homicide did occasionally take

place in historical Athens, as they do in modern States. The actuality

of such a settlement may perhaps be inferred from this speech of

Demosthenes, but certainly not the legality of it.

The second text which Glotz adduces in support of his theory is a passage

from the _Frogs_ of Aristophanes,[297] in which Euripides criticises

as a redundant expression the following Aeschylean verse[298] which

describes the return of Orestes to Argos after his sojourn as an exile in

Phocis:

ἥκω γὰρ ἐς γῆν τήνδε καὶ κατέρχομαι.

Aeschylus, in reply, denies that there is any redundancy in the verse,

asserting that there is a very real difference between the home-coming

of a citizen and that of an exile. Euripides, changing his ground,

attacks the application of the verb κατέρχομαι (‘I return from exile’)

to Orestes, because, he says, Orestes came home secretly, without

having duly ‘appeased’ by gifts those who were competent to permit his

return.[299]

It does not, says Glotz,[300] occur to Euripides to say that no

‘appeasement’ was possible in the case of Orestes; and since, in the

eyes of Aristophanes, the deed of Orestes was regarded as wilful murder,

therefore, Glotz argues, Aristophanes may be regarded as implying in this

passage that a wilful murderer could always return to his home-land,

if he happened to be abroad, provided he paid ‘compensation’ to the

relatives of the slain!

There is a strange but very obvious error in this reasoning. Glotz has

forgotten that in the early portion of the _Choephoroe_, in which the

verse in question occurs, Orestes has not yet slain his mother! At

this stage, therefore, he was not a murder-exile at all. He was merely

a political or a quasi-political exile. Homer and later legend are

quite clear in regard to the nature of this exile. Hence, obviously,

the ‘persuasion of those in power’ in this passage has no connexion

with homicide, and is, for Glotz’s argument, irrelevant. The return of

political exiles was a common occurrence in the Greece of Aristophanes

and Euripides. The persuasion used in such cases may have consisted

merely of some kind of promise or undertaking to obey the existing

government, but it may of course occasionally have taken the form of

gifts or bribes. But the ruling power at Argos which Orestes would

have had to persuade consisted of his deadliest enemies, Clytaemnestra

and Aegisthus. He came home without their sanction and without their

knowledge; Euripides therefore is right in his opinion that Orestes

did not come home by permission of the Argive ‘government.’ The verb

κατέρχομαι, which normally implies a formal and ‘recognised’ return, has

not therefore here its normal meaning. Aeschylus is therefore technically

in error in his use of this word, but he is right in maintaining that

there is no verbal redundancy in the verse.

Apart from the irrelevance of this quotation, as an argument for the

legality of ‘private settlement,’ we may point out that we have no reason

for believing, as Glotz believes, that Aristophanes regarded Orestes

as a wilful murderer. Aeschylus in the _Eumenides_ makes the Erinnyes

say so,[301] but their viewpoint is shown to be mistaken by an Athenian

Court. Euripides also was aware that not only Homer but several Attic

legends conceived Orestes as very different from a murderer.[302] In

spite of the variety and the confusion which characterised the Oresteian

legends, Aristophanes, Euripides and Aeschylus were probably well aware

that the Homeric and legendary accounts of the exile of Orestes at Athens

or at Phocis had no connexion with the penalty for homicide. We can only

say of Glotz’s reasoning here:

Indignor quandoque bonus dormitat Homerus.

There is another passage in Demosthenes, to which Glotz seems to attach

considerable importance, but which does not in our view warrant the

conclusion which he has drawn from it. In a speech _against Nausimachus_,

in which an action for breach of trust is brought by the plaintiff

against his guardian Aristaechmus, who had, fourteen years before,

compromised the dispute by a payment of three talents, Demosthenes is

naturally led, in defence of Aristaechmus (or his son) the plaintiff, to

emphasise the dishonesty of proceeding with an action where a ‘release’

has been previously granted. Incidentally, the orator happens to refer to

‘private settlements’ for homicide in the following passage[303]: ‘This I

presume you will all acknowledge, that other people have suffered wrongs

before now, of a more grievous nature than pecuniary wrongs, for example,

unintentional homicides, profane outrages and many similar offences

are perpetrated; yet in all these cases the injured parties are finally

and conclusively barred when they have come to a settlement and given a

“release.” This rule of justice is so universally binding that when a

man has convicted another of intentional homicide and clearly proved him

to be “polluted,” yet if he afterwards condones the crime and “releases”

him he has no longer the right to force the same person into exile. Nor

again where the murdered man has released his murderer before he died,

is it lawful for any of the relatives to prosecute, but those whom the

laws sentence, upon conviction, to banishment or exile or death, if they

have been released, are by that word “release” at once absolved from all

penal consequences.’ This passage is repeated verbatim in the speech

_against Pantaenetus_.[304] Müller[305] points out that both passages

are ‘disputed’ by many scholars. He thinks that there should only be a

reference to involuntary homicide.

It is of course possible that for the word ἐκουσίου (voluntary)

Demosthenes wrote ἀκουσίου (involuntary). So Müller would emend the

passage. But, apart from such a solution, the very fact that Nausimachus

was legally entitled to sue, even after a ‘compromise’ or ‘release,’

proves that Demosthenes is rhetorical rather than logical. As the passage

stands, it is in direct conflict with the law of Dracon forbidding

‘amercement’ after conviction, a law which we have already quoted.

We are convinced that such ‘settlements’ were illegal and criminal in

cases of wilful murder. In manslaughter cases, at least one year’s exile

was necessary, with or without trial.[306] In practice some of the

relatives may have drawn up a ‘release’ immediately, and such relatives

could not perhaps take part in expelling the slayer. Our conclusions

on this question will appear more fully later.[307] We have already

referred[308] to ‘the release’ which was given by the dying as a most

important factor in Greek homicide-law. We also admit that ‘settlements’

were occasionally made, though not legally authorised, and it is clear

that such ‘settlements’ could easily be confused with the ‘appeasement’

of relatives in manslaughter cases, especially in the pleadings of an

orator.

We should contrast with this Demosthenic passage another from the speech

_against Aristocrates_,[309] in which there is reference to involuntary

homicide. ‘If,’ he says, ‘the accused be convicted and be found to have

done the deed, neither the prosecutor nor anyone else has control over

him, but the law alone. And what does the law command? That a person

convicted of involuntary homicide shall on certain stated days leave the

country by an appointed road and remain in exile until he has appeased

certain of the relatives of the slain ... above all it is right that the

laws should control everybody and everything.’

Similarly, in his speech against Meidias,[310] a judge who accepted money

in settlement of a prosecution for ‘assault’ is said to have taken no

account of the laws: and another man who ‘settled’ a case of assault is

said ‘to have bidden farewell to the laws.’

As an instance of Demosthenes’ rhetorical skill in the distortion of the

meaning of words, we may refer to a passage in the Third Philippic.[311]

The question at issue was really one of treason, not of murder. A

certain Arthmius of Zelea (in Asia), having distributed Persian gold for

political purposes at the time of the Persian invasion of Greece, was

solemnly declared ἄτιμος by the Athenian people. Now a decree of ἄτιμία

for treason involved much more severe consequences than the historical

exile penalty for murder. It was the sole historical survival of

collective and hereditary punishment, and involved not only the traitor

but also his family and all his posterity (αὐτός τε καὶ γένος).[312] In

practice, no doubt, it was but a trifling penalty to an Asiatic, like

Arthmius, who had no intention of living at Athens or in the Athenian

confederacy. But Arthmius was declared by this decree to be an outlaw

within the territory of Attica or within the Athenian Empire. If found

within this territory, he, or his descendants, could be slain with

impunity. Demosthenes, anxious to illustrate the patriotism of the

Athenians of former days, compared with that of his contemporaries, by

showing the severity with which treason was formerly punished, even in

a foreigner, has recourse to the subtle hypothesis that ἄτιμος in the

decree against Arthmius did not mean merely ‘degraded’ from civic rights

but should be linked up with a verb τεθνάτω, to form a clause which means

‘let him be slain with impunity.’ The word ἄτιμος in this decree has, he

says, the same significance as it bears in the murder-laws ‘in the case

of murderers for whom the legislator forbids a prosecution for homicide,’

where it is said ‘ἄτιμος τεθνάτω.’ It is true that the word ἄτιμος could

be used to mean ‘unpunished,’ but when the Athenians declared a person

ἄτιμος, they meant by the word ‘degraded’ not ‘unpunished.’ They declared

the person ‘dishonoured,’ or degraded from civic privileges. Moreover, in

the laws of Dracon as Demosthenes quotes them the word ἄτιμος does not

occur, and the adverb used to denote ‘with impunity’ is νηποινεί. Plato

also has ἀνατί.[313] Demosthenes, then, is quite capable of juggling with

words and with the wording of laws, in his desire to secure a rhetorical

victory. But here Demosthenes, without knowing it, weakens the very point

which he desires to emphasise. A decree of ἄτιμία for treason was much

more severe than any penalty in the Attic murder laws. A murder-exile

could be slain with impunity, as a traitor could, if found within

Athenian territory. But his descendants could not! His family could

remain securely at Athens, in full enjoyment of civic rights. If the word

ἄτιμος in the decree against Arthmius meant what Demosthenes asserts

that it meant in the murder-laws, then it is incorrect to speak of the

punishment of the traitor and his descendants (αὐτός τε καὶ γένος). Now

what does Demosthenes mean by the phrase ‘in cases where the legislator

forbids a trial for homicide’[314]? The context gives the only possible

meaning: he means, in cases where _an already convicted murderer_

returned to forbidden territory and could be slain with impunity without

trial.

We shall return to this question in our next chapter, when treating

of manslaughter in Attic law, but we may for the present conclude,

as the most probable hypothesis, that in historical Athens ‘private

settlement’ as a means of absolution from homicide guilt was sinful and

legally punishable, in all cases where the dying victim did not grant a

‘release’ and where a public prosecution was otherwise legally possible.

This hypothesis, if correct, shows that amongst the Greeks, as amongst

the Semites, wergeld was abolished by the religious doctrine of homicide

as a ‘pollution,’ as an offence against supernatural beings.

Assuming, as a result of our general reasoning in this chapter, and

for other reasons which will presently appear, that the historical

murder laws of Greece were as universal and as uniform as the Greek

purgation-rites for homicide, assuming that the novelties which they

contain, in regard to their ideals of punishment, and their insistence

on compulsory State trial, were not the creation of local legislators,

but the product of international Amphictyonies which expressed their

compacts in oracular decrees—compacts which were only gradually evolved

in a compromise between local customs or desires and a new religious

doctrine which was adopted from Asiatic peoples—we will now proceed to a

brief colligation of the Laws of Dracon concerning homicide, and after

giving such commentaries as these laws may seem to demand, we will then

review the Attic murder-courts and offer an explanation of their origin

and evolution.

FOOTNOTES

[1] Thuc. i. 12.

[2] _H. and H._ p. 259.

[3] _Op. cit._ p. 54.

[4] _Ib._ p. 255.

[5] _Op. cit._ p. 259.

[6] _E.A.G._ p. 405.

[7] P. 330.

[8] _Dorians_, vol. ii. pp. 64-6; see also Ridgeway, _op. cit._ p.

659, and Thuc. ii. 101, iv. 78, viii. 3; Demosthenes, _Phil._ ii. 71,

_Olynth._ ii. 20.

[9] _Op. cit._ ii. 71.

[10] iv. 126.

[11] _E.g._ Holm, _H.G._ i. 175; Gilbert, _G.C.A._ p. 4; Herod. v. 72,

vi. 51.

[12] Pausanias, iii. 22. 7.

[13] Müller, _op. cit._ ii. 18-23.

[14] Athenaeus, vi. 265; Müller, _op. cit._ p. 31.

[15] Müller, _op. cit._ ii. 54-8.

[16] _Op. cit._ p. 334.

[17] _Ib._ p. 250.

[18] Leaf, p. 315; Müller, _Dorians_, ii. 71.

[19] _Op. cit._ p. 259.

[20] _Op. cit._ vol. ii. p. 18.

[21] _H.G._ i. 180.

[22] _H.G._ vol. ii. chap. 6, p. 262.

[23] _Op. cit._ pp. 10, 40.

[24] _Anab._ iv. 8. 25; _infra_, p. 173.

[25] See Aristotle, _Politics_, 1271 b 22; Strabo, x. 481.

[26] _E.A.G._ p. 629.

[27] _Op. cit._ p. 339.

[28] _Dorians_, ii. 65.

[29] P. 52.

[30] _H.G._ p. 161.

[31] _Life of Philip_, p. 30.

[32] i. 2 (Jowett).

[33] i. 6.

[34] i. 12.

[35] _Op. cit._ p. 225 ff.

[36] _Works and Days_, 182-193; _supra_, p. 122.

[37] _Op. cit._ p. 228.

[38] See also Coulanges, _op. cit._ p. 336 ff.

[39] Pp. 325-327.

[40] P. 397.

[41] i. 12.

[42] _Op. cit._ pp. 171-2.

[43] _i.e._ apart from the Erechtheum (i. 26).

[44] Coulanges, pp. 171-2.

[45] P. 173.

[46] _Theseus_, 24.

[47] ii. 15.

[48] _Dorians_, i. p. 256.

[49] _Op. cit._ p. 332.

[50] _Op. cit._ p. 169.

[51] See, further, article _J.H.S._ xl. Part ii. p. 202, and Pollux,

viii. 109-111.

[52] _Op. cit._ pp. 320 ff.

[53] _Ib._ p. 331.

[54] _Ib._ p. 338.

[55] _Ib._ pp. 345-6.

[56] _Ib._ p. 365.

[57] _Ib._ p. 369.

[58] _Op. cit._ p. 373.

[59] _Ib._ p. 354.

[60] See _infra_, Bk. II. ch. iii.

[61] See also Gilbert, _G.C.A._ (Eng. trans.), p. 350.

[62] Glotz, _op. cit._ p. 328.

[63] Coulanges, _op. cit._ p. 158; _supra_, p. 88.

[64] See Pollux, viii. 111.

[65] _Social Life in Greece_, pp. 16-18.

[66] _Greek Civilization_, p. 32.

[67] _Ib._ p. 41.

[68] Hall, _History of Near East_, p. 47.

[69] _H.G._ p. 77.

[70] _Op. cit._ p. 78.

[71] _Op. cit._ p. 113.

[72] _Ib._ p. 114.

[73] See Glotz, _op. cit._ pp. 231 ff.; Kinkel, _Epic. gr. fragm._ i. p.

33.

[74] i. 35.

[75] _Infra_, p. 151.

[76] _Supra_, p. 118.

[77] Cicero, _Top._ 17; Müller, _Eum._ p. 107.

[78] _Genesis_ ix. 6; _Numbers_ xxxv. 11-34.

[79] _I.e._ without intent to kill.

[80] _Exodus_ xxi. 12.

[81] _I.e._ if one slays by accident.

[82] _Exodus_ xxi. 12.

[83] _Numbers_ xxxv.; _cf._ _Deuter._ iv. 41, _Joshua_ xx. 1-9.

[84] _Op. cit._ p. 153.

[85] ii. 102 (Jowett).

[86] _Genesis_ iv. 11-15.

[87] _Laws_, ix. ch. 12.

[88] _Supra_, p. 110.

[89] ii. 2. 3.

[90] _Proleg._ p. 221.

[91] _Il._ vi. 155-205.

[92] Müller, _Eum._ p. 92; Smith, _Dict. Gk. Ant._ s.v. φόνος.

[93] _Op. cit._ p. 314.

[94] _Infra_, p. 173 ff.

[95] Dem. _in Aristoc._ 632, 634.

[96] _Op. cit._ p. 218; _infra_, p. 166.

[97] _Supra_, p. 122 ff.

[98] See _infra_, ch. ii.

[99] See _infra_, p. 181, and Dem. _in Androtion._ 593.

[100] Dem. _c. Pantaen._ 893, 59; _infra_, p. 176 ff.

[101] Lysias, _c. Agor._ 41, 78.

[102] 1-6.

[103] 5E.

[104] e.g. _Rep._ ii. 379D-383.

[105] _Laws_, ix. ch. 11.

[106] _Laws_, ix. ch. 9.

[107] Aesch. _Eum._ 886.

[108] _Ib._ 655, 660.

[109] P. 155; Dinarchus, 47; Antiphon _de Caed. H._ 11; Pausan. i. 28. 6.

[110] _Supra_, p. 112 ff.

[111] Aesch. _Eum._ 283.

[112] Eur. _Iph. T._ 1224.

[113] i. 24.

[114] i. 35.

[115] 255 ff.

[116] 470-485 (trans. L. Campbell).

[117] _sc._ vessel.

[118] 107.

[119] _Supra_, p. 148; Glotz, _op. cit._ p. 155.

[120] _Laws_, ix. ch. 8.

[121] But see _infra_, p. 153 ff.

[122] 1175-1230.

[123] Apollod. ii. 2. 3.

[124] i. 35.

[125] Aristotle, _Ath. Pol._ ch. 1.

[126] _Dorians_, i. 227-8.

[127] _Iph. Taur._ 1175 ff.

[128] _Eum._ 235-245, and 447-9.

[129] _e.g._ ix. ch. 12.

[130] _Eum._ 581.

[131] See Dem. _in Androtion._ 593, 26; and Plato, _Laws_, ix. ch. 12.

[132] _Eum._ 448.

[133] For the Attic Court Phreatto see _infra_, ch. iii.

[134] _Eum._ 451 ff.

[135] 470-485.

[136] See _supra_, p. 151.

[137] 840 ff.

[138] _Eum._ p. 136.

[139] _Areop._ p. 63.

[140] See Plato, _Laws_, ix. ch. 8.

[141] _Supra_, pp. 113 and 119 ff.

[142] _Infra_, p. 173 ff.

[143] _Il._ ix. 404.

[144] _Il._ ii. 520; Müller, _Dorians_, i. 226-232.

[145] 1-10; see also Pausanias, x. 5.

[146] _Cf._ Aesch. _Eum._ 18.

[147] x. 5.

[148] Harrison, _Themis_, pp. 396-429.

[149] See James, _Varieties of Religious Experience_, p. 387 ff.

[150] Euripides, _Ion_, 226 ff.

[151] _Ibid._ 225.

[152] _Eum._ 95-200.

[153] Ael. _Var. Hist._ iii. 1; Plut. _Q. Gr._ xii.

[154] Aeschylus, _Eum._ 440.

[155] _Dorians_, i. 297 ff.

[156] _Il._ ii. 517; ix. 405.

[157] See Bury, _H.G._ p. 361.

[158] _Op. cit._ p. 157.

[159] _Op. cit._ p. 695.

[160] Coulanges, _op. cit._ p. 279; Müller, _Dorians_, i. 258, 270, 272-9.

[161] Müller, _op. cit._ p. 232; and Euripides, _Ion_, 1111, 1220, 1256

there quoted.

[162] _Cf._ Plato, _Laws_, ix. ch. 11, _re_ kin-slaying: ‘let the judges

of these matters be the same as those to whom has been given the power of

deciding upon sacrilege.’

[163] Müller, i. 263-5.

[164] Bury, _op. cit._ p. 159.

[165] Law of Dracon, Dem. _in Arist._ 632.

[166] _Cf._ Coulanges, p. 279.

[167] Thuc. ii. 102.

[168] Her. vii. 197.

[169] _s.v._ ἐξηγηταί.

[170] _Laws_, vi. ch. 7.

[171] 1-6.

[172] _Ancient City_, p. 252.

[173] Xenophon, _Anabasis_, iv. 8. 25; see _infra_, p. 173.

[174] Arist. _Ath. Pol._ 7. 1.

[175] Plutarch, _Solon_, 17.

[176] _Op. cit._ p. 252.

[177] _Laws_, ix. ch. 12.

[178] See Aeschylus, _Agam._ 1557.

[179] _Supra_, p. 47 ff.

[180] See article, _s.v._ φόνος, in Daremberg and Saglio, p. 440.

[181] _Laws_, ix. ch. 12.

[182] See _infra_, pp. 229, 236 ff.

[183] See _infra_, ch. ii.

[184] Bk. ix. ch. 12.

[185] See Demosthenes _in Aristoc._ 637.

[186] See _Laws_, ix. ch. 8.

[187] ὁ ἐκ Δελφῶν κομισθεὶς νόμος ἤγουν χρησμὸς ἐπὶ τοῦ ἄκοντος ἀνέλοντος

τὸν φὶλον. ἔκτεινας σὸν ἑταῖρον ἀμύνων, οὐ σε μιαίνει αἷμα, φόνου δὲ

πέλεις καθαρώτερος ἢ πάρος ἦσθα ... ὁ ἀνδρὶ φιλῷ θνήσκοντι πάρων πέλας

οὐκ ἐπάμυνας, ἤλυθες οὐ καθαρός.

[188] Pausanias, i. 28. 10.

[189] _Supra_, p. 157.

[190] _In Aristoc._ 632.

[191] _Supra_, p. 145.

[192] _In Aristoc._ 632-634.

[193] _Infra_, p. 164 ff.

[194] See _supra_, p. 142 ff.

[195] _Op. cit._ p. 218.

[196] _Laws_, ix. ch. 8.

[197] _Ib._ ch. 11.

[198] _Ib._ ch. 8.

[199] τῆς χώρας τῆς τῶν νόμων τῶνδε κυρίας.

[200] Dem. _in Aristoc._ 647-8.

[201] _Loc. cit._

[202] _Supra_, p. 145.

[203] _Op. cit._ p. 218.

[204] _Ib._ p. 214.

[205] vii. 238.

[206] viii. 114.

[207] ix. 64.

[208] i. 156, 157.

[209] _Op. cit._ p. 214.

[210] _Pyth._ ii. 32.

[211] _Eum._ 444.

[212] See note, _Eum._ _ad loc._

[213] See edition of _Eumenides_, p. 78.

[214] _Supra_, pp. 21, 65.

[215] _Supra_, p. 142.

[216] _Laws_, ix. ch. 12.

[217] Schol. ad _Eum._ 444.

[218] 580 ff.

[219] _Infra_, Bk. III.

[220] _Laws_, ix. ch. 9.

[221] Müller, _Eum._ p. 141.

[222] _Supra_, p. 158.

[223] 612-616.

[224] 618-622.

[225] 32 ff.

[226] _Infra_, p. 348 ff.

[227] 600 ff.

[228] Sophocles, _Oed. Rex_, 95 ff.

[229] _Infra_, p. 173.

[230] _Infra_, p. 311. We do not attach any legal importance to Oedipus’

reference to _parricide_ (1441). It would have ruined the dramatic plot

if this word were mentioned earlier in the play.

[231] _Od._ xi. 271 ff.

[232] See _Oed. Rex_, 805 ff.

[233] _Oed. Rex_, 1438.

[234] _Infra_, Bk. III. ch. ii.

[235] Soph. _Oed. Col._ 600, 770.

[236] See _Phoenissae_, 60 ff., 1626; _infra_, p. 382.

[237] 1640 ff.

[238] 1245 ff.

[239] 1330 ff.

[240] 1155 ff.

[241] _Supra_, p. 139.

[242] 495.

[243] 1010 ff.

[244] 1282 ff.

[245] _Supra_, pp. 130, 158.

[246] _Anabasis_, iv. 8. 25.

[247] _Laws_, ix. ch. 8.

[248] _Ib._ ch. 9.

[249] _Supra_, p. 12.

[250] See Müller, _Dorians_, i. 227.

[251] _Areopag._, pp. 148-9.

[252] _Op. cit._ p. 314 ff.

[253] _Eum._ p. 123; _supra_, p. 112.

[254] _Eum._ p. 92.

[255] For conclusion see p. 213.

[256] _Supra_, p. 143 ff.

[257] See Lysias _c. Agor._ 40-42.

[258] See 94 ff., 117 ff., 179 ff.

[259] See Plato, _Laws_, ix. ch. 8, for greater and lesser purifications.

[260] _Op. cit._ pp. 237-8.

[261] _Ib._ p. 314 ff.

[262] See Plato, _Laws_, ix. ch. 11 and ch. 12; Pollux, viii. 90; Arist.

_Ath. Pol._ 57.

[263] P. 428.

[264] See _infra_, p. 181 ff.

[265] _C. Pantaen._ 983, 20; also _c. Nausimachum_, 991.

[266] Müller (_Eum._ p. 92) thinks this refers to manslaughter only.

[267] _C. Agor._ 40-42.

[268] _Ib._ 78.

[269] _Ib._ 96-7.

[270] Smith, _Dict. Gk. Ant. s.v._ φόνος, vol. ii. p. 385.

[271] _Eum._ p. 92.

[272] _Infra_, p. 205; see also p. 198.

[273] _Infra_, p. 210.

[274] We interpret the Greek words ἄφεσις and ἀφίημι as implying

‘release’ when blood-guilt is entirely remitted, as in the Demosthenic

passages cited on page 176. Plato, however, obviously applies the terms

to ‘partial release’ or forgiveness.

[275] _Laws_, ix. ch. 9.

[276] _Ibid._ ch. 8.

[277] _Eum._ p. 93.

[278] _Infra_, p. 186 ff.

[279] _Op. cit._ pp. 319-321, 363-364, p. 377.

[280] Dem. _in Aristoc._ 629-630; see also _infra_, p. 222.

[281] See _op. cit._ pp. 377-8.

[282] _Op. cit._ p. 373.

[283] Plutarch, _Solon_, 18.

[284] 593.

[285] ἀσεβείας γραφήν.

[286] συνέβη.

[287] _Op. cit._ p. 322.

[288] _Ib._ pp. 314, 324, 372.

[289] 1-6, especially see 5 E.

[290] _C. Euerg. et Mnesib._ 1161.

[291] _Supra_, p. 143 ff.

[292] _Op. cit._ p. 314.

[293] _Ib._ p. 324.

[294] 1331 (Reiske).

[295] _Areop._ pp. 148-9.

[296] _Op. cit._ p. 315.

[297] 1154-1166.

[298] _Choeph._ 3.

[299] λάθρα γὰρ ἦλθεν, οὐ πιθὼν τοὺς κυρίους.

[300] _Op. cit._ p. 315.

[301] _Eum._ 317, 428, 496, 656 ff.

[302] _Infra_, p. 340 ff.

[303] 991. _Cf._ also _c. Pantaen._ 983.

[304] 983 (Reiske).

[305] _Eum._ p. 92.

[306] _Infra_, p. 213.

[307] See _infra_, p. 212 ff.

[308] _Supra_, pp. 146, 178.

[309] 63 ff.

[310] 526-7.

[311] iii. 44.

[312] Glotz, _op. cit._ p. 465 ff.; Dem. _in Arist._ 640.

[313] _Laws_, ix. 871E.

[314] ὑπὲρ ὧν μὴ διδῷ φόνου δικασάσθαι.

CHAPTER II

THE DRACONIAN CODE

Restored inscription of 409-8 B.C. and author’s explanation:

other Draconian homicide-laws derived from Demosthenes: Plato’s

code confirms and supplements these data: classification

of Attic homicide laws as follows: (_a_) those relating to

accidental homicide, to death caused by animals or inanimate

objects; and to homicide by persons unknown: (_b_) those

relating to justifiable and to justifiably accidental homicide:

(_c_) those relating to manslaughter: (_d_) those relating to

wilful murder: some problems suggested by these laws: origin

of confiscation of property: evolution of State-execution:

parricide and kin-slaying: historicity of Plato’s legislation

regarding homicide.